(dissenting).
It seems to me clear that this is a "case involving or growing out of a labor dispute.” The Norris-LaGuardia Act forbids injunctions in such cases unless specified requirements are met. These requirements include (1) a complaint under oath; (2) testimony taken in open court; and (3>) “findings of fact by the court, to the effect— (a) That unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained * * *; (b) That substantial and irreparable injury to complainant’s property will follow; (c) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief; (d) That complainant has no adequate remedy at law; and (e) That the public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection.”1 In this case the complaint was not under oath, no testimony was taken in open court, and no facts were found. It is not even contended that the facts required by the Act existed.
The court states that appellee “requested” delivery at a later hour. Appellee’s complaint states that the driver was “required” to deliver at a later hour. Appellee would not take delivery at the old hour and the driver would not make delivery at a new hour. Since the Act makes it immaterial “whether or not the disputants stand in the proximate relation of employer and employee,” this dispute concerning the time when the driver’s work should be done was as plainly a labor dispute as if it had concerned the introduction of a night shift in a factory. Afterwards a dispute arose over appellee’s alleged sale of non-union goods. This also was a familiar type of labor dispute. It is immaterial whether the dispute over the driver’s money claim was or was not a labor dispute. One labor dispute brings the Norris-LaGuardia Act into operation. Here there were at least two. *385Since the boycotting, picketing and other conduct of which appellee complains grew out of these disputes, this is a “case involving or growing out of a labor dispute.”
The court takes the somewhat paradoxical position that the disputes regarding working hours and non-union goods were not labor disputes. Its theory is that there is no labor dispute unless the court thinks the interests the defendants seek to promote are “legitimate” and are more important, on balance, than the conflicting interests of the plaintiffs. The court identifies the statutory term “labor dispute” with the court’s concept of a “bona fide labor controversy, founded upon genuine issues involving the protection of labor in pursuing its legitimate objectives.” But the Act says nothing about the legitimacy of objectives or the balancing of conflicting interests. The Supreme Court has overruled this court’s theory in these words: “To say, as the Circuit Court of Appeals did, that the conflict here is not a good faith labor issue, and that therefore there is no ‘labor dispute’, is to ignore the statutory definition of the term * * 2 That definition is:
“The term ‘labor dispute’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.”3 The rights and wrongs of the disputes and of the conduct growing out of them, as to which I express no opinion,4 have nothing to do with the question whether this is a “case involving or growing out of a labor dispute.”
The court’s ruling comes to this, that the Act has no application to labor activity which a court thinks illegal or improper. But the Act has no practical application to anything else, for courts have never enjoined labor activity which they thought legal and proper. Therefore the court’s ruling not only conflicts with the Act but nullifies it. The Act was passed for the very purpose of preventing courts, except in the extraordinary circumstances specified in the Act, from issuing injunctions against labor activity which they thought illegal or improper. There is no finding and no contention that those extraordinary circumstances were present here.
The court holds also, in effect, that to replace a striker with another worker is to “accede to the demands” of the striker,5 ends any dispute, and prevents further activity on his behalf from growing out of a dispute.
47 Stat. 71, § 7, 29 U.S.C.A. § 107. Cf. footnote 2 of the opinion of the court.
Milk Wagon Drivers’ Union, Local No. 753 v. Lake Valley Farm Products, Inc., 311 U.S. 93, 99, 61 S.Ct. 122, 126, 85 L.Ed. 63.
47 Stat. 73, § 13(c), 29 U.S.C.A. § 113(c).
Except that the peaceful picketing which the District Court enjoined was within appellants’ rights under the Constitution. Thornhill v. Alabama, 310 U. S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Bakery and Pastry Drivers and Helpers Local 802 v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178.
It may be that the driver was not technically a striker, since he did not stop working for his immediate employer Hinkle’s Bakery. But he is in the same position as a striker for the purposes of the Act and of this case, since the Act makes it immaterial “whether or not the disputants stand in the proximate relation of employer and employee.”